An English court should solve problems of characterisation by applying the only concepts with which it is familiar, namely those of the forum. Discuss the proposition critically with reference to decided cases

Constitutional lawAn English court should solve problems of characterisation by applying the only concepts with which it is familiar, namely those of the forum. Discuss the proposition critically with reference to decided cases

How should the court solve problems of characterisation? Alternative theories.

The lex fori theory.

The lex causae theory.

Conclusion: English courts and characterisation.

Bibliography.

The English conflict of laws is a body of rules whose purpose is to assist an English court to deal with cases tried before it which contain a foreign element. It consists of three main topics: (i) the jurisdiction of an English court, in the sense of its competence to hear and determine a case; (ii) the selection of the appropriate rules of a system of law, English or foreign, which it should apply in deciding a case over which it has jurisdiction (in appropriate cases the English court can apply a foreign law to resolve a legal issue. The rules governing this selection are known as 'choice of law' rules); and (iii) the recognition and enforcement of judgments rendered by foreign courts or awards of foreign arbitrations. Having established that choice of law rules can lead to the application of either English or a foreign law, this essay will attempt to explain why an English court should solve problems of characterisation by not just applying the only concepts with which it is familiar, namely those of the forum.

[...] In assessing the validity of this marriage, the English court had to classify the issue as being one relating to essentials or formalities.[11] The English court, without any reference to the Argentinean classification of the issue, decided that under English law this was a matter of formal validity an therefore the marriage was valid.[12] The classification of laws as procedural or substantive rules is critical in the conflict of laws because of a clear rule that matters of procedure are governed by the lex fori, as it would not be practicable to expect an English court to carry out trials according to foreign procedures with which it is not familiar, thus a court will apply foreign law only to the extent that it deals with the substance of the case. [...]

[...] This is because no foreign law becomes potentially applicable until there has been a reference to it by an English choice of law rule with an English connecting factor. [1908] P 46. There are two choice of law rules governing validity of marriage: The first means that if the English court has to determine the validity of a marriage, then any rules of the laws of the parties' domiciles which are rules of capacity to marry must be applied. Similarly, the second choice of law rule means that any rules of the law of the country in which the marriage was celebrated which are rules of formal validity are to be applied. [...]